You have heard of the attorney-client privilege, but do you know what it means and why it is so important?

What Is Attorney-Client Privilege?

In Washington, confidential communications between attorneys and clients are defined in the Rules for Professional Conduct (RPC 1.6). This attorney-client privilege, set by applicable law, is a special protection that provides confidential communications that attorneys and clients share throughout their professional relationship and lasts even after that relationship ends. Read RPC 1.6 here.

Litigation is where this privilege really matters. There are evidence rules that prevent most communication between attorneys and their clients from being disclosed during trial or testimony, which is established in ER 502:

(a) Disclosure Made in a Washington Proceeding or to a Washington Office or Agency; Scope of a Waiver.

When the disclosure is made in a Washington proceeding or to a Washington office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if:

  • (1) the waiver is intentional;
  • (2) the disclosed and undisclosed communications or information concern the same subject matter; and
  • (3) they ought in fairness be considered together.

(b) Inadvertent Disclosure.

When made in a Washington proceeding or to a Washington office or agency, the disclosure does not operate as a waiver in any proceeding if:

  • (1) the disclosure is inadvertent;
  • (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
  • (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following CR 26(b)(6).

(c) Disclosure Made in a Non-Washington Proceeding.

When the disclosure is made in a non-Washington proceeding and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Washington proceeding if the disclosure:

  • (1) would not be a waiver under this rule if it had been made in a Washington proceeding; or
  • (2) is not a waiver under the law of the jurisdiction where the disclosure occurred.

(d) Controlling Effect of a Court Order.

A Washington court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court–in which event the disclosure is also not a waiver in any other proceeding.

(e) Controlling Effect of a Party Agreement.

An agreement on the effect of disclosure in a Washington proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Definitions. In this rule:

  • (1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
  • (2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

Why Is Attorney-Client Privilege so Important?

This privilege is extremely important because it prevents you or your attorney from having to disclose certain communication between the two of you. Thus, it is imperative that this privilege is not waived. The client holds this privilege, not the attorney. Meaning, that the attorney does not hold the right to waive the privilege. Privilege can be waived by a client in a few ways:

  • Communication witnessed by a third party, such as having a friend or family member attend a meeting with your attorney with you or speaking to your attorney while on speaker phone while someone else is in the room.
  • Forwarding email correspondence between you and your attorney to a third party.
  • Disclosing advice your attorney has given you to a third party.

The Attorney-Client privilege protects confidential communications between attorney and client, not third parties. When a third party attends or observes a consultation or any other communication with the attorney, the disclosure of privileged information during that communication to a third party waives the privilege. If privilege is waived, the floodgates are essentially opened and just about anything can come in during testimony or trial, whether you and/or your attorney want it to or not. It is usually not in your best interest to waive privilege. When this privilege is waived, it can have major negative effects on litigation, specifically in trial. This is a big deal because if that third party is called as a witness to testify, any information that they heard or observed can be disclosed. The attorney cannot waive the privilege because they do not hold the privilege, but instead, if the attorney discloses information about your case to a third party, they are in violation of the Rules of Professional Conduct and would be violating their duty of confidentiality, which is a serious issue.

For example, say you schedule a consultation with an attorney about your divorce proceedings and your best friend attends the consultation with you. During this consultation, you disclose to the attorney that you will “do anything” to keep your ex from the children. The case is very high conflict, and your ex is alleging that you are withholding the children in bad faith. During trial, your best friend is called to the stand to testify. Your ex’s attorney asks your best friend if they have ever attended a meeting with your attorney with you. They say yes. The ex’s attorney then asks what your best friend heard during those meetings. Your best friend will then have to testify about you disclosing that you said you would “do anything” to keep the children from your ex. The attorney-client privilege does not apply to them. This would be a major win for your ex in supporting their claim that you are withholding the children from them in bad faith.

Here Is What to Do to Ensure Attorney-Client Privilege Is Not Waived

  • Attend meetings with your attorney by yourself.
  • Do not speak to your attorney on the phone while using speaker phone when others are around you.
  • Do not forward emails from your attorney to other parties.
  • Do not screenshot emails from your attorney and send it to other parties.
  • Do not discuss conversations and advice from your attorney with other people.
  • When in doubt, ask your attorney first!

The purpose of the attorney-client privilege is to encourage open and honest communications between clients and their attorneys. To represent a client effectively, attorneys must know the full truth of the situations and issues. The attorney-client privilege supports that a client is more likely to provide their attorney with honest information, no matter how embarrassing or unfortunate, if those communications cannot be disclosed without the client’s consent. The privilege also ensures that attorneys can provide candid and honest legal advice to their clients after knowing the relevant and honest details about the case. However, there are always exceptions to every rule, so there may be some situations where the attorney will have to disclose confidential communications, such as when there is a threat of death or serious bodily harm. These exceptions can be found in RPC 1.6(b).

Important Tip

Always tell your attorney the truth so they can properly and effectively advise you. Your communications are confidential and privileged, so long as you do not disclose communications between you and your attorney to third parties or have third parties attend meetings with you and your attorney.

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Disclaimer

Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.